COMPLETE LIST OF PUBLICATIONS

PUBLICATIONS IN THE AREAS OF

ENVIRONMENTAL LAW AND LITIGATION

Books and Manuals

Practical Environmental Law, co-authored with Thomas H. Truitt (Federal Publications, Washington, D.C., First Ed. 1978, and updated annually over the next 18 years); course manual of approximately 500 pages comprehensively surveying the field of environmental law and regulatory programs.

RCRA Hazardous Wastes Handbook (initially published in 1980; 12th Ed. 2001); co-authored with Robert C. Davis, Jr., Richard E. Schwartz, Nancy S. Bryson, and R. Timothy McCrum; published by Government Institutes, Inc.; detailed analysis of the law and hazardous wastes regulatory program under the Resource Conservation and Recovery Act.

The Superfund Manual (initially published in 1985; 6th edition 1997), co-authored with Robert C. Davis, Jr., Richard Schwartz, Nancy S. Bryson, and R. Timothy McCrum; published by Government Institutes, Inc.; detailed analysis of the Comprehensive Environmental Response, Compensation and Liability Act (“Superfund”), including response authorities, enforcement and liability issues, case law, implementing regulations, and chapter on common law liability. 

All About Environmental Auditing, co-authored with David Case; published by Federal Publications, Washington, D.C., 2nd ed. 1992; explains the nature and purpose of an internal self-evaluation for compliance with environmental laws and regulations; how to do it; how to use it as a management tool.

Environmental Law Handbook, (Government Institutes, Inc., 8th Edition, 1985)(co-authored the chapters on the Resource Conservation and Recovery Act and Superfund).

Environmental Compliance at Federal Facilities (Crowell & Moring conference manual 1988)(co-authored; comprehensive analysis of environmental laws and regulations applicable to federal facilities, and the practical problems faced by owners, operators, and contractors at such facilities, and suggested courses of action to minimize liabilities).

Seeking Solutions to the World’s Environmental Problems (Crowell & Moring conference manual 1989)(co-authored; analysis of international environmental issues, including climate change, acid rain, ozone depletion, hazardous waste management, and energy and land use policy, industrialization and public health).

Environmental Litigation and Dispute Resolution, co-authored with RichardSchwartz, Elliott Kagan and Jerold Oshinsky (Federal Publications
Course Manual, rev. 1993).

Articles

Privileged Communications and the Production of Documents, Practicing Law
Institute Handbook on TRIAL EVIDENCE (1965), written together with     Morgan P. Ames.

The Appropriate Bargaining Unit: Striking A Balance Between Stable Labor
Relations and Employee Free Choice, Western Reserve Law Review,
Vol. XVIII, No. 2, January, 1967.

The Standard of Conduct in Negligence Actions, Practicing Law Institute, New York, 966, written together with Morgan P. Ames.  Reprinted in PLI 1968 course handbook, Effective Personal Injury Practice, and PLI 1969 course handbook, Personal Injury Liability.

The Inland Wetlands Act: Reconciling a Collision of Interests, Conn. Bar Journal,
Vol. 48, No. 1, March, 1974 (analyzing the provisions, purposes, and
mechanics of Connecticut’s Inland Wetlands Act; reviewing the relevant history of regulation of land use through the “police power” and the constitutional “taking” issue; recommendations on local implementation and administrative procedures).

The Evolution and Implementation of EPA’s Regulatory Program to Control the Discharge of Toxic Pollutants to the Nation’s Waters, 10 Nat. Res. Lawyer
507 (1977)(discussing the background, rationale, and principal features of a major regulatory program under the Federal Water Pollution Control Act).

Regulation of Problem Pollutants Under the Federal Water Pollution Control Act: The 1976 Consent Decree in PROCEEDINGS OF THE SECOND OPEN FORUM ON THE MANAGEMENT OF PETROLEUM REFINERY WASTE-WATER Doc. No. EPA-600/2-78-058 (March, 1978), pp. 87-102 (held in June, 1977, Tulsa, Oklahoma; reviews the scientific and policy rationale behind EPA’s priority program to regulate 65 toxic pollutants as found in the discharges of 21 major industries).

The Clean Water Act of 1977, 11 Nat. Res. Lawyer 343 (1978 )(surveys and analyzes this major legislation). 

EPA’s New Pretreatment Program, Industrial Water Engineering (September, 1978)(analyzes this major EPA regulatory program, including its relationship to other Water Act programs and its likely impacts on
state and local communities and industry).

Preparing for Hazardous Waste Regulations, Industrial Water Engineering, Vol. 16, No. 6 (November/December, 1979)(reviews EPA’s regulatory program for the control of hazardous wastes under the Resource Conservation and Recovery Act, and discusses its impact upon U.S. industry).

Control of Water Pollution at Surface Mines - A Regulatory Approach with Broader Applications, Environmental Regulation Analyst, Vol. 1, No. 5 (April, 1980)(analyzes water pollution control at mine sites by EPA under the Clean Water Act and the Department of the Interior under the Surface Mining Control and Reclamation Act and concludes that surface runoff problems can be better addressed through management practices than point source controls).

Structuring Corporate Compliance Programs for Pollution Control Requirements, 35 Business Lawyer 1459(1980)(edited and co-authored this presentation by the Committee on Environmental Controls of the ABA Section on Corporation, Banking and Business Law at the ABA Annual Meeting in 1979; discusses the pros and cons of corporate compliance/response programs and how to set one up and implement it).

General Requirements for Consolidated Permits, Environmental Regulation Analyst, Vol. 1, No. 9 (August, 1980), co-authored with Tom Watson, David Case, and Jeffrey Davidson; analyzes EPA’s consolidated permit regulations and permitting procedures. 

Program-Specific Requirements for Consolidated Permits, Environmental Regulation Analyst, Vol. 1, No. 10 (September, 1980), co-authored with
Tom Watson, David Case, and Jeffrey Davidson; analyzes the specific  requirements under EPA’s consolidated permit regulations for each of
the five programs included under them.

Managing Hazardous Wastes, 5 ALI-ABA Course Materials Journal No. 1 (August, 1980), co-authored with Tom Watson, David Case, and Jeffrey Davidson; provides overview of RCRA hazardous wastes regulatory program and practical guidance as to its application, implementation, and compliance procedures.

Recent Developments in Professional Liability Affecting Corporate Environmental Lawyers, 36Business Lawyer 461 (1981)(analyzes civil and criminal liability provisions of environmental laws and federal criminal statutes, and recent case law, bearing on potential liability exposure of the environmental lawyer; recommendations on how to avoid or minimize risk of such exposure).

Brand Name Liberation Comes to the Clean Water Act, 4 American Clean Water Association Friday Morning Letter No. 3, p.12 (March, 1992)(discusses a December, 1981, amendment to the Municipal Wastewater Treatment Construction Grants Provisions of the Clean Water Act which gives cities and other local procurement agencies increased discretion to include a brand name in the specifications for a piece of equipment when the procuring agency finds that this would be helpful in order to assure that the resulting equipment will result in the desired performance).

New Directions in Water Quality Standards, Environmental Analyst, June, 1982 (discusses EPA’s proposed new regulations relating to water quality standards designed to give the states greater flexibility in designating water quality uses and in prescribing maximum contaminant levels of pollutants which will be allowed in the designated water bodies).

The Problem of Unending Liability for Hazardous Waste Management,  38 Business Lawyer 593 (Feb. 1983)(a review of liability and risk management problems under the Resource Conservation and Recovery Act, Superfund, and common law).

Reducing Generators’ Liabilities, Hazardous Materials and Waste Manage-ment, Vol. 1, No. 1, p.24 (Jan./Feb. 1983); co-authored with Gary N. Dietrich (a two-part analysis of the legal and practical aspects of liabilities of generators of hazardous wastes, and methods of reducing those liabilities; specific discussion of wastes generated by the electroplating, metal finishing, and printed circuit board industry).

Toxic Tort Liability, Business Insurance, May 9, 1983, co-authored with Timothy Biddle and Patrick Lee (reviews current developments in Toxic torts litigation, including scientific developments, media problems, claims management, and cost control).


The 1984 Amendments to the Resource Conservation and Recovery Act are        Tougher Than Ever, Pipeline, Vol. 2, No. 1 (March 1985)(provides overview and highlights of the 1984 RCRA amendments).

Understanding the 1984 Amendments to the Resource Conservation and Recovery Act, Proceedings of the Michigan Industrial Hazardous Waste Conference (May 1985)(discusses the 1984 RCRA amendments, their implementation, and impact on waste management activities).

How Clean Is “Clean” at a Hazardous Waste Site?, EPA Journal, October, 1984.

Who Pays for Superfund Cleanups at DOD-Owned Sites?, co-authored with Roger Boyd and Nancy Bryson, 2 Natural Resources and Environment 11, Spring, 1986

Years of Wrangling End With Passage of Superfund Act, Legal Times, 

October 27, 1986 (summarizing the principal features of the Superfund Amendments and Reauthorization Act of 1986).

Judicial Review of EPA’s Selection of Remedies Under Superfund, 
2 Hazardous Substances 4 (Feb. 1987)(Analyzing the law and policy
and advocating a broad scope of judicial review).

Environmental Compliance at Federal Facilities, co-authored with Robert C. Davis, Jr., published in the Government Contractor (Federal Publications, August, 1988).

Toxic Torts and Hazardous Waste Cases, published in proceedings of the  Twelfth Annual Local Government Law In Florida Seminar
 (March 10-11, 1989).

Review of Significant Regulatory Developments in the Resource Conservation and Recovery Act, 12 Environmental Management Review 1 (May 1989)(co-authored with Robert Davis and Tim McCrum; reviewed regulatory and case law developments under RCRA during the preceding two years).

Superfund Litigation: The Contractor’s Role published in Volume 5, Issue 5, 
of Econ: Environmental Contractor Magazine (May 1990) Co-authored with Bill Anderson.

Judging Toxic Torts: An Imprecise Science, Legal Times, August 26, 1991, (a discussion of the problems of scientific uncertainty in the context of mass exposure/delayed manifestation toxic tort cases; problems when “junk science” or inadequate experts are offered to the court; recommendations to get better science into the courtroom, including American Law Institute proposal).

Judicial Review of EPA CERCLA Remedy Selections In Private Cost Recovery Actions, 27Chemical Waste Litigation Reporter827 (March 1994)(an analysis of the extent to which, and on what record, a defendant in a private CERCLA cost recovery action may challenge the remedy selected by EPA which the plaintiff has agreed to perform under a prior consent
decree or administrative order).

 Superfund Response Cost Allocations:  The Law, The Science and The Practice -- co-authored with Robert H. Harris, Ph.D., and Judith A. Reinsdorf, 49 Business Lawyer 1489 (Aug. 1994) (reviews the statutory framework and legislative history underlying the allocation of Superfund response costs among potentially responsible parties;    reviews the relevant EPA guidance and case law and then discusses technical and evidentiary issues and practical approaches to carrying out cost allocations, including the use of matrix systems to take into account the weighing of relevant factors based on their significance at the site and to the various parties).

What Will Superfund Reauthorization Look Like? —  BNA Environment Reporter Current Developments, p.236 (May 19, 1995)(an analysis of current issues relating to the Superfund reauthorization and amendment process currently pending before Congress).

International Corporate Environmental Compliance and Auditing Programs - The Environmental Law Reporter, 25 ELR News and Analysis 10393 (Environmental Law Institute, August 1995)(a review of emerging international standards for corporate environmental management and auditing programs, including the European Union’s Eco-Management and Audit Scheme and the emerging ISO-14000 environmental management standards.  Examines the environmental regulatory, trade and business implications of the environmental provisions of various international treaties and conventions, including the General Agreement on Tariffs and Trade, NAFTA, and United Nations programs).

ISO 14000 Environmental Management Standards:  Making the Benefits Outweigh the Burdens, proceedings of the ABA 25th Annual Conference on Environmental Law (March 1996)(discusses the implications of these standards for competitive advantage, benchmarking environmental compliance and management programs, and relations with regulatory and enforcement agencies; considers implications for law reform).

Keeping Track of the Environment: What You Need To Know About Auditing Programs, 5Business Law Today,  No. 5, p.39 (May/June 1996)(reviews current industry practices and recent developments in the areas of privilege, new auditing and management standards, government agency positions,  and responses from the private sector).

Co-author, Chapter on International Occupational and Environmental Legal Issues, in Issues In International Occupational and Environmental Medicine (Fleming, Herzstein and Bunn eds., OEM Press 1997).

Pay Me Now Or Pay Me Later: Ocean State Asbestos and Civil Penalty Increases Based On Prior Violations, co-authored with Ellen B. Steen, 9 EPA Administrative Law Reporter 323 (April 1997) (discusses the Ocean State Asbestos decision by an EPA administrative law judge holding that a respondent’s due process rights would be violated by the imposition of a substantial penalty increase based on an alleged prior violation under EPA’s Asbestos Demolition and Renovation Civil Penalty Policy.  The Article reviews other EPA penalty policies which, in varying terms, similarly allow penalty enhancements for subsequent “violations” and discusses the problems inherent in these policies).

Handling A Complex Hazardous Waste Case, conference materials assembled for the annual American Law Institute-American Bar Association conference on Hazardous Wastes, Superfund and Toxic Substances which I have co-chaired for a number of years (October 1997).

Optimistic Agenda For Next Generation, 14 The Environmental Forum12 (November/December 1997)(book review of Thinking Ecologically, written and edited by Dan Esty, Director of Yale’s Center For Environmental Law and Policy; discusses problems with our current environmental regulatory regime, describes briefly initiatives which are in process by      five organizations which are developing proposals for regulatory reform, and then evaluates the leading ideas and provides recommendations).

Does The Federal Court’s Harmon Decision Resolve The RCRA Overfiling Controversy?, 36Chemical Waste Litigation Reporter 750 (October 1998) and 12 EPA Admin. Law Rep. 577 (Oct. 1998)(discusses the holding in Harmon that EPA lacks the statutory authority to “overfile” its own enforcement case when the state has already brought an enforcement action for the same alleged violation, as well as issues of res judicata, statute of limitations and the implications of the case for enforcement under other federal environmental statutes).

Legal and Practical Issues In Negotiating A Voluntary Or Brownfields Cleanup Agreement, American Law Institute-American Bar Association Conferenceon Hazardous Wastes, Superfund and Toxic Substances, November 12-14, 1998, pp. 219 et seq. (includes identification and analysis of issues; what various parties to a Brownfields redevelopment project will be interested in andneed to conclude a transaction, plus EPA guidance documents and other reports and articles on prospective purchaser agreements, voluntary remedi-ation, and a survey of state voluntary cleanup and Brownfields programs).

Year 2000 Failures Could Trigger Environmental Enforcement, co-authored with Richard B. Cowles, Environmental Engineering (October 26, 1998), p.22(discusses potential environmental release and noncompliance problems which could be caused by Y2K computer malfunctions, EPA’s enforcement policy, and recommended preventive measures).

Green In The New Year?, co-authored with Robert C. Davis, Jr., Legal Times, vol. xxi, No. 35 (January 25, 1999)(discusses potential environmental non-compliance problems which could result from Y2K computer malfunctions,EPA’s enforcement policy and “safe harbor” program for testing and corrective measures, SEC disclosure policies and requirements, and recommended preventive measures).

False Claims Act Litigation Based on Alleged Environmental Noncompliance, Proceedings of the ABA 28th Annual Conference on Environmental Law (March 1999) (reviews this recent development in FCA litigation, discusses recent cases, including legal issues, practical and tactical litigation issues, policy implications and recommended preventive measures).

American Trucking Associations, Inc. v. EPA: What Is The Future of the Ambient Air Quality Standard-Setting Process?, 13 EPA Administrative Law Reporter, 782 (June 1999)(analyzes the D.C. Circuit’s decision setting aside EPA’s Clean Air Act national ambient air quality standards for particulate matter and ozone on the grounds that their promulgation “effects an unconstitutional delegation of legislative power”.  Analyzes the decision and its implications for future EPA rulemaking).

Countering False Claims Act Litigation Based On Environmental Noncompliance, co-authored with Mark Koehn, monograph published by National Legal Center for the Public Interest (Briefly . . . , Vol. 3, No. 9, September, 1999)(Discusses recent cases and trends in this area; provides practical and strategic advice on defending and avoiding such litigation).

Harmon Limits RCRA Enforcers To One Bite, 29 Environmental Law Reporter,10781 (December 1999)(discusses the decision of the Eighth Circuit in theHarmon case holding that EPA may not “overfile” an enforcement case whenthe state has already prosecuted an enforcement case arising out of the sameactivities; discusses broader implications of the decision for enforcement).

The Implications of Whitman v. American Trucking For Regulatory Standard Setting, 17 EPA Administrative Law Reporter 260 (March 2001) (Discusses Supreme Court decision upholding EPA’s national ambient air quality standards for particulate matter in ozone against a constitutional challenge and holding that the standards must be based on public health protection and not considerations of cost and technological feasibility).

Negotiating The Environmental Aspects Of A Contaminated Property Transaction published in the ALI-ABA conference proceedings on Hazardous Substances, Site Remediation and New Age Enforcement, October, 2001.

Lessons Learned From The Intersection of CERCLA and Contract Law, 32 Environmental Law Reporter (News & Analysis) 11481-11489 (December, 2002) co-authored with Kirsten Nathanson.  (Discussing the implications of a recent 11th Circuit decision for the drafting of contracts for site remediation and Superfund response cost allocation as well as releases and settlement agreements in cases involving multiple settlements sequential litigation).

The Environmental, Health and Safety Audit, Chapter 57 in A Practical Approach To Occupational and Environmental Medicine (Lippincott Williams & Wilkins pub., Robert J. McCunney edit, 3rd ed. 2003).

The Implications of the Sarbanes-Oxley Act for the Environmental, Health and Safety Auditing Profession (placed on the Auditing Roundtable Web Page in March 2003).

A Case Study In Compliance Assurance: The BP Amoco Environmental Management System, 33rd Annual ABA Conference on Environmental Law Manual, pp.339 et seq. (March 2004)(summarizes key features of this environmental management system, and discusses how particularly challenging problems were addressed, based on my four years of service as a court-appointed monitor overseeing its design and implementation).

Sarbanes-Oxley and Environmental Disclosures, ABA Environment and Energy Business Law Reporter (December 2004)(co-authored with Maria Pugliese)(discuss recent guidance on the disclosure of anticipated and contingent environmental liabilities in SEC reporting).

Quality Assurance in EHS Audit and Audit Programs: The BEAC Standards, Environmental Law Reporter, v.39, pp.10594 et seq. (July 2009) discussing the need for professional standards and guidance in the conduct of environment, health and safety audits as well as in the design of sound EH&S auditing programs; discusses in particular the recently issued Performance and Program Standards issued by the Board of Environmental Health and Safety Auditor Certifications (“BEAC”).

The Evolution and New Directions in EnvironmentalAuditing and Compliance Management,Natural Resources & Environment, Vol. 24, (American Bar Association, Fall 2009)(Reviews the evolution of environmental auditing from its beginnings in the late 1970s through the current period and discusses new directions and trends in the design and implementation of EH&S auditing and compliance assurance programs and management systems in the post-Sarbanes-Oxley era, including emerging programs to address greenhouse gas reduction, sustainability and corporate social responsibility).

Renewable [Energy] Portfolio Standards, co-authorized with Tom Utzinger and Jessica Hall,LexisNexis Global Climate Change Special Pamphlet Series, (Feb. 2010)(This pamphlet discusses the nature of renewable energy portfolio standards as a means of promoting the use of renewable energy sources and technologies, including discussion of the numerous state programs and pending legislation to create
a federal renewable portfolio standards; also discusses renewable energy credits and feed-in tariffs).

The Chesapeake Bay TMDL, cover story in The Environmental Forum, vol.28, No.3, p. 34 (May/June 2011) (describing the "total maximum daily load" (TMDL), a "pollution diet" for nutrients and sediment issued by EPA for the Chesapeake Bay in December, 2010 - the biggest TMDL EPA has ever issued under the Clean Water Act, covering portions of 6 states and the District of Columbia, and the largest estuary in North America).

 

Articles Not Primarily Related To Legal or Regulatory Matters

Keeping It Cool On the Campus, The New Republic, April 4 and 11, 1970 (analyzing pending and existing campus unrest legislation and the proposals of the American Bar Association’s Commission on Campus Government and Student Dissent).

Last-Minute Rescue for Legal Aid?, The New Republic, November 21, 1970 (analyzingadministrative and political problems of the OEO Legal Services Program).

Advocates for the Poor: Legal Services, Inc., The New Republic, May 29, 1971.  Reprinted inJustice in America (Lineberry Ed., H.W. Wilson Co., publishers, New York, 1972, pp.206-210).

Cutting Off Aid To Expropriators, The New Republic, October 2, 1971 (analyzing problems which have arisen under Section 620(e) of the Foreign Assistance Act.)

Some Perils of Poverty Law, The New Republic, April 15, 1972 (concerning pending legislation to establish a National Legal Services Corporation).

Reconstruction in South Carolina, The New Republic, July 22, 1972 (a lookat some new community economic development projects, marketing cooperatives, and minority self-help ventures in South Carolina).

The Long Island Fight, The New Republic, May 12, 1973 (examining the environmental impact of the proposed Rye-Oyster Bay Bridge).

Straightening Out the Rails, Environment, Vol. 17, No. 6, September, 1975 (examining the problems of the railroads and the reorganized “SystemPlan” developed by the U.S. Railway Association under the RegionalRail Reorganization Act as pointing the way towards a new nationaltransportation policy which gives increased weight to energy andenvironmental conservation as well as overall efficiency of operation).

Linking Up With the Historic C&O Canal, 12 Bike Report, No. 7 (July, 1986)(describing a bicycle trip along the 185-mile Chesapeake and Ohio Canal tow path).